State v. Johnson

• Decision Date: 25 February 1970
• Citation: 109 N.J.Super. 69,262 A.2d 238
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Thomas A. JOHNSON, Jr., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 69

109 N.J.Super. 69

262 A.2d 238

STATE of New Jersey, Plaintiff-Respondent, v. Thomas A. JOHNSON, Jr., Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Oct. 20, 1969.

Decided Feb. 25, 1970.

Edward P. Hannigan, Asst. Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender, attorney).

Robert L. Podvey, Asst. Prosecutor, for respondent (Joseph P. Lordi, Essex County Prosecutor, attorney, David S. Baime, Asst. Prosecutor, of counsel and on the brief).

Before Judges GOLDMANN, LEWIS and MATTHEWS.

The opinion of the court was delivered by

GOLDMANN, P.J.A.D.

The principal question raised on this appeal is whether a defendant convicted of violating the Uniform Narcotic Drug Law (N.J.S.A. 24:18--1 et seq.) may be punished as a second offender under N.J.S.A. 24:18--47(c)(2) when the second violation occurred, and the indictment based thereon was entered, prior to his first conviction under the act. We hold that he may not.

Defendant appeals through the Public Defender from a 5--6-year State Prison sentence imposed upon him as a second offender under N.J.S.A. 24:18--47(c)(2) after he had pleaded guilty to a charge of unlawful possession of a narcotic drug (N.J.S.A. 24:18--4). Defendant had twice violated the Uniform Narcotic Drug Law. The first offense occurred in November 1966 and resulted in Essex County Indictment 1237--66, and the second in February 1967, resulting in Essex County Indictment 1319--66. He was tried on the former, found guilty, given a suspended 2--3-year sentence and put on probation for three years. He subsequently pleaded guilty to the latter indictment and received the sentence here under review. The following clarifies the chronology of events:

Defendant received no notice that he was to be sentenced as a second offender, either by way of accusation or otherwise. The sentencing judge made it clear that he imposed the sentence he did because he felt bound by the provisions of N.J.S.A. 24:18--47(c)(2), stating:

The Legislature feels that people who violate the narcotics laws should be sent to jail. * * * Knowing this to be the Legislative policy and knowing that you are not a single violator but rather a second offender for the same particular offense, I cannot justify and action on my part in not imposing a custodial sentence in view of that provision of the law which binds me. * * *

I

Defendant first contends that he was improperly sentenced as a second offender because his second offense was committed before his conviction on the first offense. This question was not expressly raised below, and is therefore projected as plain error.

N.J.S.A. 24:18--47 provides that any person

(c) Who violates any other provision (of the Uniform Narcotic Drug Law) shall be guilty of a high misdemeanor and shall be punished as follows:

(1) for a first offense, by a fine not exceeding $2,000.00 and by imprisonment, with hard labor, for a term of not less than 2 years nor more than 15 years;

(2) for a second offense, by a fine not exceeding $5,000.00 and by imprisonment, with hard labor, for a term of not less than 5 years nor more than 25 years In case a person charged with a violation of any of the provisions of this chapter shall have been previously convicted of a violation of the laws of the United States or of any other State, territory or district relating to narcotic drugs, such previous conviction shall for the purpose of this section, be deemed a first or second offense as the case may be.

A more severe punishment on conviction for a second offense is deemed highly penal and therefore must be strictly construed. United States v. Lindquist, 285 F. 447, 448 (D.C.W.D.Wash.1921); State v. Meinken, 10 N.J. 348, 352, 91 A.2d 721 (1952). Moreover, it is firmly established that the erroneous sentencing of a person as a second offender may constitute plain error, even though the sentence imposed does not exceed the maximum allowed for a first offense. State v. Booker, 88 N.J.Super. 510, 212 A.2d 849 (App.Div.1965).

Defendant contends that the word 'offense,' as used in the cited statute, must be read as referring to a Conviction if it is to provide a basis for enhancing punishment as a second offender--this in contrast to the alternative construction whereby a person who had violated the Uniform Narcotic Drug Act on successive dates would be punishable as a multiple offender, emphasis being placed on the time of commission rather than on the time of conviction. Our problem is therefore one of statutory construction.

We are referred by the parties to cases based on different, if similar, statutes providing, for example, for enhanced punishment for multiple violations of drunken driving statutes, federal narcotic laws, or habitual offender acts. Thus, a distinction between the commission of and the conviction for an offense was made in Holst v. Owens, 24 F.2d 100 (5 Cir. 1928), construing the multiple offender section of the former National Prohibition Act, 27 U.S.C.A., § 46. The court, in referring to successive 'offenses' rather than 'convictions,' pointed out that

It cannot legally be known that an offense has been committed until there has been a conviction. A second offense, as used in the criminal statutes, is one that has been committed after conviction for a first offense. Likewise, a third or any subsequent offense implies a repetition of crime after each previous conviction. (at 101)

See also, Singer v. United States, 278 F. 415, 420 (3 Cir. 1922), dealing with the same statute; Annotation, 'Chronological or procedural sequence of former convictions as affecting enhancement of penalty for subsequent offense under habitual criminal statutes,' 24 A.L.R.2d 1247, 1249, 1252 (1952), and 3 A.L.R.2d, Later Case Service 728 (1965), stating this as the majority view.

State v. Deckert, 69 N.J.Super. 105, 173 A.2d 575 (Cty.Ct.1961), on which the State relies, is not relevant. The court there held that N.J.S.A. 39:4--50, dealing with persons convicted of drunken driving and providing for an increased penalty for second offenders, did not require that a conviction for a first violation precede a second violation in order for the second violation to carry with it the increased penalty. The decision was based upon a change in the wording of the statute by the amendment effected by L.1952, c. 286. The statute had originally read, in pertinent part:

* * * Any person who shall violate this provision shall, upon conviction thereof for a first offense, be subject to (a fine or imprisonment, or both) * * *. Any person who shall violate this provision, Having been convicted of a previous violation thereof, shall be imprisoned * * *. (L.1931, c. 171, § 9; emphasis added)

The 1952 amendment read, in pertinent part:

A person who operates a motor vehicle while under the influence of intoxicating liquor * * * shall be subject, for a first offense, to (a fine or imprisonment, or both) * * *. For a subsequent violation, he shall be imprisoned * * *.

Although the amendment deleted the words 'having been convicted of a previous violation thereof,' it inserted the clause 'who has been convicted of a previous violation' in a subsequent paragraph having to do with the contents of a complaint charging a second violation. The Deckert court apparently took this as another indication that the deletion was not a mere inadvertence, stating (at 109, 173 A.2d 575) that 'The Legislature in the preparation of the amendment avoided the use of the phrase 'been convicted of a previous violation' and this omission seems to be with deliberation.'

Since we have nothing by way of legislative history or successive amendments to guide us, we must analyze the intent and purpose of the language of N.J.S.A. 24:18--47(c) in terms of the most plausible or reasonable end to be accomplished. If the statute is considered as essentially punitive and repressive, then it may be argued that it is the mere commission of the offense that is critical, and enhanced punishment would therefore be justified. On the other hand, if one accepts the more modern view that our system of criminal justice is aimed equally at rehabilitating offenders, then it would not be appropriate to sentence an accused as a second offender before he had had an opportunity to amend his ways after initial confrontation with the courts of law.

As noted above, the great weight of authority in the United States appears to support the latter view. Interestingly enough, the court in Deckert recognized this when it said:

The preponderance of authority supports the view that the prior conviction, in order to be available for imposition of increased punishment, must precede the commission of the principal offense, that is, the latest prosecution in point of time. The philosophy inherent in this theory is that the Legislature in enacting such statutes intended them to serve as a warning to first offenders and to afford them an opportunity to reform and that the reason for the infliction of severer punishment for a repetition of offenses is not so much that defendant has sinned more than once as that he is deemed incorrigible when he persists in violating the law after conviction of previous infractions. * * *. (69 N.J.Super., at 107, 173 A.2d 575)

Gonzalez v. United States, 224 F.2d 431 (1 Cir. 1955), was a case arising under the Federal Narcotics Act of November 2, 1951, 21 U.S.C.A. § 174, and dealt with a fact situation paralleling the one here involved. Gonzalez had been arrested for violating the narcotics law, pleaded guilty to the charge on February 12, 1952, and was released on bail. He committed other violations of the narcotics law at various times between May 23 and June 25, 1952. On July 29, 1952, following his re-arrest for these violations, he was sentenced to a five-year term as a first offender for the violation to which he had pleaded guilty in February. In September 1952 he was sentenced to serve a term of...